Submission to the House of Commons
Standing Committee on Canadian Heritage1
in regards to its section 92 copyright act review and report2.

Permission is granted to republish or include this
document in other documents, in whole or in part, as long as some
form of acknowledgment is made. If the new work is a derivative work,
please ensure that it is marked as such so that it will not be
confused with my own writing.4

Introduction

When I read a notice
in July 2001 about a consultation process on Copyright reform in
Canada, I did not realize that I would be joining into a process that
would become a large focus of my time. Very soon after the notice I
formed an on-line forum (Canada DMCA Opponents5)
which was used to discuss and encourage many submissions to that
process. Since that time I have had the opportunity to speak to many
other people in this process, including many creator communities. I
have had had coverage in the media, and even had an opportunity to
discuss copyright with the Heritage Minister as part of a televised
Ministers Forum on Copyright around the 2003 Juno weekend6.

This submission is
intended to be an update of copyright reform experience from
discussing this important area of law over the past 2 years. I hope
that I will be given the opportunity to talk to the members of the
standing committee on Canadian Heritage to discuss some of the ideas
I offer.

There are 4 major
sections to this submission:

Perspective of
author on copyright policy.In this section I discuss the
authority that I draw upon for analyzing this area of policy, and a
few example problem areas.

The Free Software
movement as a creators rights movementIn this section I
introduce and clarify the roll of the Free Software movement within
copyright reform.

Section 92 review
of the Copyright ActIn this section I highlight specific areas
of the section 92 report, offering recommendations.

Author
participation in Copyright and related policy eventsThis is a
listing of events relating to this area of policy that I have
participated in over the last two years.

Primary recommendations
of this submission

I have two major
recommendations for copyright policy makers working on digital
copyright reform. These recommendations are to hold off on major
changes to copyright policy until two important themes have been
adequately studied and understood by policy makers.

The first is a
phenomena referred to as "commons-based peer-production"7
or "open collaborative models for the production of public
goods"8.
This is a model for the creation of works that is very different
than modes of production that are currently well known. While reading
academic papers on this topic I believe that this third way of
organizing their production after markets and firms may turn out to
be as important to a future knowledge economy as the creation of the
corporation was for the industrial economy.

While there is much
talk about how the Internet has facilitated massive amounts of
copyright infringement, I do not agree with the suggestion that this
is the most critical issue for creators in digital copyright reform.
Creators need to have two sets of rights protected in copyright. The
first, and most important, is their right to create and distribute
their works under their own terms, including choosing their own
business model. The second, and more often spoken about, is their
economic right to receive royalty payments for works when this is the
business model they have chosen.

The tools chosen by
the intermediaries9
to solve problems of the second type may have the unintended
consequence10
of creating problems of the first type. The proposal to create
protection of technological protection measures is one such proposal
which will end up granting further control to intermediaries over the
creation and distribution of works, since creators will be using
tools that would be created by and under the control of
intermediaries. It has been suggested that legal protection of
technological protection measures is not a protection of copyright,
but a replacement of copyright where the balance offered by the
Copyright Act is replaced by software created by intermediaries.

Perspective of the
author on copyright policy

The
authority that I draw upon in my thinking about copyright policy are
two articles from the United Nations Universal Declaration of Human
Rights (UNUDHR)11,
specifically article 19 and article 27.

Article
19.

Everyone
has the right to freedom of opinion and expression; this right
includes freedom to hold opinions without interference and to seek,
receive and impart information and ideas through any media and
regardless of frontiers.

Article
27.

Everyone
has the right freely to participate in the cultural life of the
community, to enjoy the arts and to share in scientific advancement
and its benefits.

Everyone
has the right to the protection of the moral and material interests
resulting from any scientific, literary or artistic production of
which he is the author.

From
these articles I draw a number of interpretations that form the
principles from which I will evaluate policy suggestions.

As
one example, there are 3 constituencies in copyright reform:
creators, intermediaries and citizens. Intermediaries include those
middle-persons between the creator and their audiences, including
non-creator copyright holders such as publishers and employers. I
interpret the declaration as only recognize there being a
justification for rights to be granted to creators and citizens.

I
strongly believe that copyright policy should involve the delicate
balance of the rights of creators and citizens, with intermediaries
receiving no rights directly but only privileges granted to them on
behalf of (and for the benefit of) creators or citizens.

Quick note about language

Many persons who talk about patents, copyrights,
and trademarks will lump them together under the term "intellectual
property". In creating a group to talk about patents, copyrights
and trademarks the working group at the World Summit on the
Information Society has started to use the PCT acronym to mean
"Patents, Copyrights, Trademarks". In their IPR Name
DISCLAIMER they state the following (edited to correct minor spelling
errors and remove external references):

This working group has
come to recognize that the term "intellectual property rights"
carries bias and encourages simplistic over generalization. Therefore
this working group does not carry the name IPR. In particular, this
group does not endorse the legal school of thought, which advocates
that productions of the mind shall be treated in a similar way as
real estate property. This legal doctrine implicitly backs the
concept that copyrights should last for ever. This working group
deals with patents, copyrights, and trademarks and related issues. We
believe that those issues should be dealt with as distinct conceptual
issues. The use of the acronym PCT in the URL of this working group
shall not be construed as implying that those issues must be dealt
with, with the same global legal and cultural framework.

If the IPR acronym is
used, we encourage people to give to this acronym the meaning of
"Intellectual Productions Rights" instead. This is meaning
of the IPR acronym that has been adopted in this site, wherever IPR
is used. For convenience, this site is also accessible through the
URL : WSIS-IPR which was the URL of the non-public preliminary
versions. We also encourage everyone involved in the WSIS to use the
word "intellectual property" with utmost precaution.12

Creator/citizen control
of ICT tools

In
a world where Information and Communications Technologies (ICT) are
used to communicate works under copyright, these tools must be under
the control of the user. These users include both creators using ICT
tools to create and communicate their works, as well as citizens
using ICT tools to receive and enjoy these works.

Any
'hardware assist' for communications, whether it be eye-glasses,
VCR's , or personal computers, must be under the control of the
citizen and not a third party.

Corollary:
The "content industries", such as the motion picture and
recording industries, are not legitimate stakeholders in the
discussion of what features should or should not exist in my personal
computer or VCR, any more than they are a legitimate stakeholder in
the production of my corrective eye-glasses. If a member of a content
industry doesn't like the technology that exists in a given market
sector, be it consumer electronics in the home or personal computers,
they can simply not offer their products/services into that market.

This
interpretation of copyright policy appears to be in direct contrast
with many of the recently discussed reforms which favor granting
intermediaries rights over creators and citizens. There are reforms
that grant intermediaries additional power in contractual
negotiations with creators under "work for hire" regimes
where copyright is granted automatically to the intermediary unless
the creator is able to negotiate the retention of their creative
rights.

Work
for hire is not the most extreme example of recent policy that may
circumvent creators' rights. The most extreme example of this problem
is the concept of "legal protection for technological protection
measures" (LpfTPM).14
This is the source of a considerable amount of controversy in
copyright reform today, and the source of the bulk of the 700
submissions to the 2001 round of copyright consultations.

Rather
than protecting copyright, LpfTPM is more appropriately thought of as
a replacement for copyright. In this case the rules of what can and
can not be done with a work are set by intermediaries in technology,
rather than the rules being set by democratically elected governments
in acts of parliament. Central to the interpretation of this area of
law by some countries is the granting of monopoly control over ICT
tools to these intermediaries.

The
expected outcomes of these reforms are discussed in very emotional
ways by those that oppose them for good reason. If intermediaries are
granted full control and veto power over the creation and use of ICT
tools, then the ability of these intermediaries to circumvent both
article 19 and article 27 of the UNUDHR will be trivial.

A
simple thought experiment can demonstrate the problem. In 1982 in
testimony to the United States House of Representatives on why the
VCR should be illegal, Jack Valenti said, "I say to you that the
VCR is to the American film producer and the American public as the
Boston strangler is to the woman home alone"15.
If Jack Valenti, president of the Motion Picture Association of
America (MPAA), had been successful in convincing the United States
to ban the VCR (and all derivative tools such as the camcorder and
inexpensive video editing hardware/software), would the current
visual arts community exist today? I would suggest that creators of
these types of works would at this point either be working for MPAA
members, likely under even more oppressive "work for hire"
situations than creators are subjected to today, or not working at
all.

Royalty payment as a
single business model, not a right

Part
of the protection of the material interests of creators must be a
recognition of the right of the creator to determine the business
model under which their works will be exploited. Far too often the
collection of per-unit royalties are promoted as the only way to
receive material benefit from works when in fact collecting per-unit
royalties are simply one business model among many.

This
problem is obvious when discussing the extension of a collective
society16
beyond administrating the works of its members to claiming the right
to administrate entire classes of works. This is what we are seeing
in the private copying17
section of the Copyright Act where collective societies are claiming
the right to collect royalties based on all music, whether or not the
copyright holder is a member of the society and regardless of the
business model being used by the musician.

In
an article I recently authored for Canadian New Media discussing the
blank media levy that is part of the private copying regime, I wrote:

I
would find it reprehensible if CAAST18
managed to get added to this regime such that all the blank CDs I buy
end up subsidizing my competitors (and in some cases, my arch
enemies). I already pay to the recording industry for media used to
store software.19

I would consider it a
violation of both my moral and material rights in any software I
create to have such a regime imposed on software. It would infringe
on my right to determine my own business model, and infringe on my
right to have my work being part of an international open
collaborative method for the creation of public goods. The business
model and collaborative methodologies I have chosen is dependent on
the protection of my moral and material rights through copyright and
related laws, but are not compatible with per-unit royalty fees or a
royalty-fee based collective society.

The Free Software
movement as a creators rights movement

When talking to
different creator communities I have found it very useful to
introduce the community that I am from. Many misconceptions about our
community exist, and many creators incorrectly believe that we are
somehow not supportive of their rights or copyright in general.

Software
history

The origins of our
movement can be found in the formation of the software sector
generally. Prior to the 1960's software was always bundled with
hardware as part of an integrated device. You had a device that could
do word processing, but it could not be easily reprogrammed to do
other work. Hardware was obviously manufactured, distributed and sold
on a per-unit basis and thus the bundle of hardware and software was
marketed that way.

In the 1960's the
software sector formed with the separation of software from hardware.
At this point two very different camps were formed. There were those
who felt that software should be treated the same as hardware, with
those in the "software manufacturing" movement relying
almost entirely on business models from the manufacturing sector.
This subset of the software industry was very successful from the
1960's up to today.

Another group of
people noticed that software, being intangible and naturally
non-rivalrous, has very different attributes than hardware. They felt
that there was no need to arbitrarily limit software and software
business models to those from the manufacturing sector, and think of
per-unit royalty payments as simply one business model among many.

Formation of Free
Software Foundation

Some software creators
from "software manufacturing" alternatives started to
notice various threats to their ability to create software. Some
hardware and software manufacturers were claiming monopolies on the
interfaces between software and their products, locking out all other
software creators from being able to create software that could
interface with that hardware/software. In order to protect the
creative rights of these software creators, the Free Software
movement was formalized in 1985 with the formation of the Free
Software Foundation (FSF)20.

The FSF promotes the
development and use of free (as in freedom) software. The
understanding of meaning of the word 'free' is very important to
understanding the movement. To quote from the Free Software
Definition21

We
maintain this free software definition to show clearly what must be
true about a particular software program for it to be considered free
software.

``Free
software'' is a matter of liberty, not price. To understand the
concept, you should think of ``free'' as in ``free speech,'' not as
in ``free beer.''

Free
software is a matter of the users' freedom to run, copy, distribute,
study, change and improve the software.

Many people in public
policy circles have started to use the phrase "Free/Libre and
Open Source Software" (FLOSS22).
This clarifies the meaning of the word 'free' with the use of the
French word "libre" which contrasts with the word "gratis".
This also includes the work from the related Open Source movement.

Protecting creators'
rights through political alliances

Most creators know
that that they do not have a lot of political influence. In order to
protect their rights they need to make alliances. Many creators have
made alliances with non-creator copyright holders in the belief that
all copyright holders share interests and values.

The Free Software
movement thinks very differently. Rather than believing that the
largest threat to creators is private citizens infringing their
rights, they believe that the largest threat comes from
intermediaries infringing their rights. Rather than believing that
the greatest threat to their craft comes from citizens not paying
royalty fees for the use of their works, the free software movement
believes the greatest threats come from intermediaries imposing
limits to their ability to create and distribute works on the
creators terms.

Rather than creating
alliances with non-creator copyright holders, they have created
alliances with computer users. In fact the FSF describes themselves
as being "dedicated to promoting computer users' right to use,
study, copy, modify, and redistribute computer programs."23

As part of that
alliance with users to have users and software creators mutually help
protect each others rights is the removal of one of the largest
incentives for software users to infringe a software authors rights:
the per-unit royalty payment. Free Software creators do not charge
per-unit royalty fees, but instead get paid under a host of
alternative business models that do not rely on per-unit royalty
fees24.

Most important
question: Who controls creation and use of ICT tools

While the
intermediaries have many people convinced that the most important
copyright issue today is the non-payment of royalties by private
citizens, the largest threat to creative rights is elsewhere. The
largest threat is to a creators right to create works and to
communicate them under their own terms. The primary cause of this
threat is legislative changes relating to the digital communication
of works without adequate analysis of the consequences.

Traditionally the
interface between a creators work and their audience is governed by
the laws of nature in the form of sound and light waves, or some
other stimulus, being received by our human senses. No third party,
whether it be a government or an intermediary, can exert control over
these interfaces. When works are created and communicated digitally
you have additional interfaces25
governed by software to worry about. You have interfaces between the
real world and electronic media in recording or display devices,
interfaces between hardware and software, interfaces between
different parts of software(Application Programmer Interfaces), and
interfaces between software over networks. Without giving adequate
analysis of the consequences governments have been extending
copyright and patent laws26
to these interfaces and upsetting any rights balance in the process.

In order to restore
basic creator and citizen independence from third parties we must
ensure that these computing interfaces are not offered any type of
legislated monopoly, whether in copyright or patent law. This is
something needed to protect creators rights and citizen
communications rights as well as many other rights that are dependent
on these rights.

Reduction
of Software copyright infringement

There is quite a bit
of talk about software copyright infringement committed by the
average software user. Traditional "software manufacturing"
lobby groups send out studies yearly27
suggesting that this is a very serious problem.

There are, however,
serious problems with the methodologies used by these studies, and
one of the best solutions to the problem is completely ignored by
these "software manufacturing" groups. Both of these issues
highlight differences between "software manufacturing" and
peer produced FLOSS software.

To illustrate:

David
Fay, consultant for International Planning and Research Corp. which
conducted the study, explains the method as follows:

"We
estimated PC shipments by province within Canada. And from that we
estimated the amount of software that was required, or the demand for
software, and we compared that against software shipment data which
we built up from actuals of BSA member companies. And then estimated
the other parts to fill out the industry total."28

According
to this, all my PC shipments were all 'estimated' to have some demand
for the software of CAAST members. I installed not a single piece of
member software on any computer I currently own for either my
business or home computers since I run an almost 100% Open
Source/Free Software shop.

These
bogus statistics may simply indicate that Canadian citizens are more
advanced in their understanding of the software market and have moved
faster than Americans to dump the products of "Software
Manufacturing". Best solution to the so-called "Software
Theft" problem? Use Free Software!30

In this reply I gave a
hint to the best solution to so-called "software theft".
With FLOSS software we do not charge per-unit royalty fees so no
private citizen will ever have an incentive to infringe on our
copyright. We get paid for our work through means other than
royalties, and our customers adhering to our license agreements
becomes much more simplified (trivial for the average user). This is
in large contrast to the expensive process of license management and
inadvertent infringement which is very common with "software
manufacturing". The movement away from royalty fees truly is a
win-win situation for the industry and our customers.

Infringement
still a problem, but with intermediaries

While FLOSS solves a problem relating to
infringement by private citizens, this does not mean we no longer
need to protect our works from infringement. The current legal
battles surrounding The SCO Group31
provide an example of the problems we must deal with.

Important to this case is a lack of
understanding of FLOSS methodologies either in the media or in the
courts. With all the lawsuits and counter-lawsuits it is far too easy
to loose the forest for a single relatively insignificant tree.

This is a case involving allegations by SCO
against the Linux Kernel32
project of copyright infringement. To understand the case you first
need to understand how FLOSS projects work. With all the lawsuits and
counter-lawsuits it is far too easy to loose sight of the forest for
a single relatively insignificant tree.

As with most FLOSS project the Linux kernel is
the open collaborative work of literally hundreds of software
developers33.
Each of these software developers retain copyright on their own
contributions. In order for all these different contributions to be
compiled together as one program each contribution has to be offered
in a license agreement that is compatible with each other. In the
case of the Linux kernel all contributions must either be licensed
under the GNU General Public License version 234,
or in a license agreement that is compatible with the GPL35.
These software developers may also offer their contributions to
different users under multiple license agreement terms with the GPL
compatible license being one of many, and many software developers do
this.

In the current court cases there is a dispute as
to whether The SCO Group is one of those hundreds of contributors.
The SCO group have thus far not disclosed what part of the Linux
kernel is allegedly under their copyright, not allowing individuals
or distributors of Linux to remove any potentially infringing code.
There is also a dispute as to whether The SCO Group intentionally
contributed the code in a license agreement that was compatible with
the GPL, making any use of that code in the Linux collection not
infringing of their copyright.

What is not under dispute is the copyright of
the hundreds of intentional contributors to Linux. What the SCO has
asked for is a royalty payment for their contribution, but for one
contributor to request a royalty payment is an infringement of the
rights of those hundreds of other copyright holders. Where The SCO
Group has made the situation difficult by not disclosing what part of
Linux they consider to be under their copyright so that the origins
of that software could be investigated, the other contributors to
Linux are offering the most transparent and accountable access to
their software: the full public disclosure of their source code
contribution under a FLOSS license.

The misinformation from Darl McBride, CEO of The
SCO Group, can be seen in his "Open Letter to the Open Source
Community"36
where he suggests that there are "intellectual property"
problems that exist in the current Linux software development model37.
The problem for companies like The SCO Group is that Linux is
protected by copyright and license agreements which do not allow them
to infringe the rights of hundreds of software developers in the way
that they are trying to do. They are trying to misdirect people into
thinking that copyright law is in their favor when the facts are
otherwise.

In a response to this letter Eric S. Raymond and
Bruce Perens clarify the situation38.

In fact, leaders of
the open-source community have acted responsibly and swiftly to end
the DDoS attacks just as we continue to act swiftly to address
IP-contamination issues when they are aired in a clear and
responsible manner. This history is open to public inspection in the
linux-kernel archives and elsewhere, with numerous instances on
record of Linus Torvalds and others refusing code in circumstances
where there is reason to believe it might be compromised by
third-party IP claims.

As software
developers, intellectual property is our stock in trade. Whether we
elect to trade our effort for money or rewards of a subtler and more
enduring nature, we are instinctively respectful of concerns about
IP, credit, and provenance. Our licenses (the GPL and others) work
with copyright law, not against it. We reject your attempt to
portray our community as a howling wilderness of IP thieves as a
baseless and destructive smear.

Larger public policy
context

The international open
collaborative methodologies used in FLOSS are not limited to only
being used to create software39.
The recommendations I have been making using software as an example
have implications for copyright policy generally.

In his paper on peer
production law professor Yochai Benkler offered the following:

For
regulators, the implications are quite significant. In particular,
the current heavy focus on strengthening intellectual property rights
is exactly the wrong approach to increasing growth through innovation
and information production if having a robust peer production sector
is important to an economy's capacity to tap its human capital
efficiently. Strong intellectual property rights, in particular
rights to control creative utilization of existing information, harm
peer production by raising the costs of access to existing
information resources as input. This limits the capacity of the
hundreds of thousands of potential contributors to consider what
could be done with a given input, and applying themselves to it
without violating the rights of the owner of the information input.
This does not mean that intellectual property rights are all bad.
But we have known for decades that intellectual property entails
systematic inefficiencies as a solution to the problem of private
provisioning of the public good called information. The emergence of
commons-based peer production adds a new source of inefficiency.40

International context

The discussions that
Heritage Committee members are having and the exposure that they are
receiving of peer production methodologies is not unique to Canada.
This discussion is happening at a variety of different paces in most
countries in the world. To give an example of the discussion I will
mention two venues associated with the United Nations: the World
Summit on the Information Society (WSIS) and the World Intellectual
Property Organization (WIPO).

The summit is being held under the high
patronage of Kofi Annan, UN Secretary-General, with the International
Telecommunication Union taking the lead role, in cooperation with
other interested UN agencies42.
The draft declaration of principles included the following:

24A.
Choice among software applications contributes to increased access
and enhanced diversity for software users. Multiple software
development models exist which help promote this principle, including
open source which is a valuable model that supports more affordable
access to ICTs.43

More specific
references to Open Source software is included in the action plan44,
and were an integral part of the participation of a number of
delegates.

A few countries who
have established "software manufacturing" sectors in their
domestic economy have lobbied hard to remove any mention of Open
Source at WSIS, or to outright promote "software manufacturing"
(using the term "proprietary software"45).

The justification
given for the opposition to FLOSS is that WSIS must promote
"technology neutrality" and "software choice".
The problem with this justification is that FLOSS is neither a
technology nor a choice of software product or vendor.

FLOSS is is a vendor,
software and technology neutral open collaborative methodology for
the production of software. In most of the processes by which goods
are produced, methodology matters -- especially to governments.
Suggesting that FLOSS methodologies reduce software choice is like
suggesting that requiring that construction workers adhere to safety
standards removes housing choice.

I have been tracking
this event both in the public media and through a public mailing
list46
hosted by the Linux Professional Institute47
which is an accredited participant at the summit. The Free
Software Foundation48
is also accredited.

World
Intellectual Property Organization (WIPO)

WIPO describes its
mandate in the following terms:

The
World Intellectual Property Organization (WIPO) is an international
organization dedicated to promoting the use and protection of works
of the human spirit. These works intellectual property are expanding
the bounds of science and technology and enriching the world of the
arts. Through its work, WIPO plays an important role in enhancing the
quality and enjoyment of life, as well as creating real wealth for
nations.49

Given this description
of itself, it should follow that WIPO would support the use and
protection of works of the human spirit in open and collaborative
ways towards the creation of public goods. A letter from 63 experts
and stakeholders was sent to Kamil Idris, Director-General of WIPO,
requesting that WIPO host a meeting on open collaborative development
models50.

Unfortunately while
such a meeting clearly falls within the mandate of WIPO, some special
interests have been able to derail meeting organization thus far51.
Many reports have put the blame on the United States, quoting Lois
Boland, the U.S. Patent and Trademark Office (PTO) acting director of
international relations, suggesting that WIPO is "clearly
limited to the protection of intellectual property. To have a meeting
whose primary objective is to waive or remove those protections seems
to go against the mission."52

The failure of a
representative of the US government to be able to determine the
difference between copyright protection, which FLOSS relies on, and
royalty-based business models shows just how much education of policy
makers is needed.

Section 92 review of the Copyright Act

A small sampling of
issues discussed in the report on the provisions and operation of the
copyright act will be highlighted.

A.1.2 Authorship of
photographs

I believe the
treatment of photographers as different from other creators is not
only based on a treatment of photography as an industrial operation,
but also issues relating to privacy that do not belong in the
copyright act at all. When discussing this section the most often
heard justification is that the subject of photographs should have
rights in relation to these works to protect their privacy.

I very much understand
the call for privacy. I have gone to photographers galleries and
noticed the portfolios available on the walls and in albums. Have the
permission of the subjects been granted? Some of these pictures are
of a personal and sometimes graphic or sexual nature. While a subject
may want to have such a picture made for their spouse, there should
be protection to ensure that these photographs are not ever displayed
to any other audience. Creators rights in the photograph should not
allow a photographer to display a work without permission being
granted by the subject.

I do not believe that
the medium of expression should be a determining factor. Whether the
art form is a photograph or a painting, the subject should retain the
same rights.

Recommendation:
Section 10 of the Act should be amended to provide photographers with
the same authorship rights as the creators of other artistic works.
This committee should make further recommendations to strengthen
privacy protection to protect the rights of subjects of any artistic
work, regardless of medium or tools used in creative process.

A.1.9
Linking

There is a need to
keep public policy technology neutral, which is not the case for any
discussion of linking.

A person who provides
a link should not be held responsible for the content at the
destination site any more than a company producing a telephone
directory should be held responsible for any illegal activities that
may happen over that phone line. Only the maintainer of the content
that is referred to by a "link" (URL, or Universal Resource
Locater) has control over the content, and thus should be the only
individual that should be held liable in any way for the content.

Related to this topic
is the subject of "deep linking" where some technologically
unaware companies have suggested that if websites link directly to
content on their website, rather than going through their homepage,
that this is a violation of their copyright. The maintainer of a
website has complete control over what content is returned with a
given URL that refers to their website. A competent web administrator
can return different content for the same URL depending on any type
of rules that they wish to set, such as a multitude of ways to verify
authorization to access the requested content.

The copyright act is
an entirely inappropriate place to deal with a problem that can best
be understood as a human resources problem at a few Internet content
companies.

Recommendation:
consider discussions of linking, including deep linking, as topics
outside the scope of copyright reform.

A.1.13 Rights
management information

Recommendation: Do
not protect rights management information beyond a recognition of an
intent to infringe in a court case where infringement had already
been established.

A.1.15 Technological
protection measures

I have addressed this issue generally elsewhere
in my submission, and will only add a quick note about the practical
implications of LpfTPM, and how the US interpretation of this law
harms TPM research itself.

The US implementation disallows public
cryptographic discussions required to improve TPM technologies. If we
divide people who work on cryptography in an old "western"
movie style we would have "white hat" cryptographers and
"black hat" cryptographers. Legal protection for TPM would
essentially put a prohibition on "white hat"
cryptographers, disallowing them the tools and experience needed for
them to create better TPM's. On the other hand, the "black hat"
cryptographers are not going to be discouraged by the legality of
breaking TPM's and will have both the tools and the experience far
superior to the "white hat" cryptographers. Rather than
ensuring that TPM's are strong and that the information that they are
intended to protect are kept secret, LpfTPM only ensures that TPM's
will be weak and easily circumvented by "black hat"
cryptographers.

An analogy can be made to a game of chess chess
where only one side is allowed to allowed to practice which will
ensure that they will always win.

Recommendation 1: Do
not offer any protection on Technological Protection Measures beyond
the breaking of TPM's being recognition of an intent to infringe in a
court case where infringement had already been established.

Recommendation 2: Before moving forward on any
of the digital copyright issues, Canadian policy makers must
adequately investigate open collaborative models for the production
of public goods. Canada should not only be pushing to ensure that
this conversation happens at WIPO as discussed earlier in this
submission, but that domestic resources be tapped to adequately
understand these issues.

A.1.16 Term of protection

Term of protection was
discussed in previous submissions, so I will not include all that
discussion here.

Recommendation: The
term of protection should not be tied to the lifespan of the creator,
but to the nature of the creation. Term should be a limited number of
years from first publication regardless of the time of the death of
the creator. The number of years should be tied to the nature of the
work such that software receives a much smaller (say 20 years)
copyright while literature would receive a larger period. A maximum
of 50 years would be offered for any type of work.

A.1.19 Traditional
knowledge

There is much
discussion in whether or not traditional notions of copyright can
apply to TK. It may be useful to draw some parallels to the
discussions around the open collaborative creation of public goods
which also question some of the business model assumptions of current
copyright. At the 2003 Annual General Meeting of the Creators Rights
Alliance a person went to the microphone during a TK panel and
suggested that some of the ideas from the "copyleft"
concept may apply to TK.

On the other extreme
there was a suggestion that since TK relates to works where the
creators have been dead for a long time, the solution would be to
make copyright have an infinite term. The immediate image that comes
to mind is the use of nuclear weapons to swat a fly. It is critical
that current assumptions around copyright be questioned before trying
to apply this regime for different types of works.

This is also an area
of copyright reform that would benefit from policy makers having more
experience with open collaborative models for the creation of public
goods. Canada should become strong promoters of having conferences
like the one suggested for WIPO, and should ensure that domestic
policy makers are well aware of these models.

A.3.4 ISP liability

There is currently an attempt to have ISP's held
responsible for acts of their customers that they can not reasonably
monitor or have any control over. In order to protect the privacy and
communications rights of citizens, ISP's should be required to have
less intervention in the non-technical operations of network
connections, not more.

ISP's should be expected to help law enforcement
agencies in the investigations of crimes, but all the safeguards and
judicial oversight that exists outside the digital communications
arena should still apply. An ISP should be no different than a
landlord who may open the door of a tenants home for the police with
a court order, but are not allowed to do so simply because some
private citizen (or company) claiming that there are stolen goods
inside has requested it.

Recommendation 1: ISP's should not be held
liable for the actions of their customers, or for actions (such as
caching) which are a normal part of the technological operation of an
ISP. Only when an ISP is also the publisher of content should they
incur liability (as a publisher, not as an ISP).

Some discussions have gone to the detailed level
of who a HTTP cache benefits (the sending website, the receiving ISP,
or the receiving user) and thus who should be held liable. Like much
of the discussion in copyright reform these details often overlook
the fact that caches are largely under the control of the sending
site. If the copyright holder does not want their website in a cache
then they should properly configure their own software to indicate
this. These technological details are changing all the time, while
laws change very infrequently.

Recommendation 2: There should be an attempt to
ensure that legislation in this area (and others) remain technology
neutral.

B.2.2 Computer programs

It
appears to require reminding that while copyright is an appropriate
form of protection for software, that there needs to be limits to
allow the continued creation of software. There must also be limits
to ensure that ICT tools that are governed by software remain under
the control of their owners (the users of the tools, including
creators of non-software works) and not third parties (the creators
of the tools).

The
most fundamental digital copyright issue today is not the collection
of royalty payments for existing works contrary to the media
attention the Napster case received, but the need to protect the
rights of creators to create and communicate works to fellow
citizens. A precondition to protecting creators rights in digital
media is that creators (users of communications tools) be in control
of these tools. The delicate balance between the rights of creators
and the rights of fellow citizens in the Copyright Act would be
circumvented if third-party intermediaries are given exclusive rights
over the basic means of communications.

Recommendation:
Computing interfaces of any type, whether they are human-computer
interfaces, hardware-software interfaces or software-software
interfaces should not be offered any form of exclusive right. The
ability to reverse engineer any existing interface should be
protected in law to ensure that a lack of documentation by the
creator of an interface can never be used as a way to circumvent any
prohibition on interface monopolies.

It may be appropriate to clarify that this
recommendation is a further recommendation against Legal protection
for Technological Protection Measures which has been used as a
back-door to granting exclusive rights on computing interfaces in
legal jurisdictions that otherwise do not grant such rights.

B.2.3 Contractual limitations
on exceptions and uses

Far too many
contractual agreements are of a complexity that the average layperson
is not able to understand what they are agreeing to. When it comes to
software "shrink-wrap" licenses, very few people read the
agreements to determine what rights they may be waiving.

One solution for
citizens is to try to choose methodologies such as FLOSS where a
large number of programs use the same license agreements rather than
"software manufacturing" where different versions or
different customers of the same program are under different
agreements.

Generally we need to
move away from thinking of Patents, Copyright or Trademarks as a form
of property. What is owned by a copyright holder is not an idea or
even an expression of their work, but very specific limited exclusive
rights set out by the copyright act.

It should not be
possible to have a contractual license agreement offered by a
copyright holder that takes rights away from the user of a work that
relate to a limitation on an exclusive right. If there is a statutory
exception to copyright, it should not be taken away through contract
law. There are two philosophical strands to
fair-dealing/fair-use53,
and I clearly fall under the strand that believes that fair dealings
is an inherent component of the copyright bargain.

Recommendation: The act should clarify that
limitations on exclusive rights under the copyright act should not be
negotiable under copyright license agreements, and any attempt on the
part of a licensor to negotiate away the user right is void.

An issue related to contractual limitations is
the concept of warranties. A growing number of people feel that
software "products" should have some of the same
protections where it comes to warranty that other products do. Most
software license agreements, whether FLOSS or non-FLOSS, will clearly
state that there is no warranty offered by the copyright holder.

I believe that requiring a warranty on all
software is the wrong solution to the problem. While I agree that
software created by "software manufacturing" is lacking in
accountability or transparency to the users of this software, I
believe the solution is to move to software created by FLOSS
methodologies. While FLOSS software creators may not directly offer
warranties, these methodologies include transparency and
accountability by allowing full public peer review, third party
software audits and third party warranties. Customers who wish to
pay a third party to warrant the software that they use are able to
do so with FLOSS, where only the manufacturer of "software
manufacturing" has the level of access to the software required
to offer a warranty.

B.3 A Special Regime
for Music: Private Copying

There are a number of
concerns with this special regime for music. My largest concern is
that this imposition of a business model onto all creators of a
category of work may be imposed outside of music. As I have written
elsewhere I consider this government imposition of a business model
to be an infringement of a creators rights. As with digital copyright
issues there is a need for policy makers to adequately investigate
open collaborative models for the production of public goods which
can include music and not just software.

While I am not a
creator of music, I feel there is an injustice against musicians by
having this regime imposed on them. The music industry is already too
centralized and focused on "superstars" that receive more
than their fair share of the rewards in this craft. We see many
starving artists and musicians at the same time as governments are
further protecting some of the business models which promote this
problem.

The standard business
models of the recording industry are not in the interests of the
musicians other than the "superstars". Recording industry
expenses are measured in a per-musician or per-song basis, while
their revenues are measured in a per-copy basis. This encourages the
industry to maximize profit by minimizing expenses through
minimizing music choice while trying to maximize the number of copies
sold for the musicians that are the chosen few.

I feel I need to
clarify that generally I am supportive of the concept of collective
societies and collective administration of rights under copyright.
In some ways FLOSS methodologies can be seen as a form of collective
administration of rights by creating common license agreements which
easily facilitate the creation of collections of software which can
be formed without negotiating with individual copyright holders.

Under the private
copying regime the choice of whether a musician's works are part of
the collection is not a decision offered to the musician. The
benefits of this collective administration are not returned to the
musicians whose works were enjoyed, nor are the royalties only
collected from those who have enjoyed the work. The collective
administration of music rights works well where payment to the
collective society is based on a play-list which ensures the right
member-musicians are being payed the royalties. The private copying
regime makes use of intermediary industry special interests
manipulatable measurements of "air time" and "record
sales" to determine who receives payment.

This regime will
discourage music fans from paying musicians, and there is already a
growing feeling that with the blank media levies that music is
already paid for and thus there is no reason to pay additional
royalty fees by buying the music.

While the purpose of
law often stated by lawyers is to create certainty, the current
private copying regime creates uncertainty. The regime appears to
legalize things which most people believe should be illegal, and does
not make legal what people believe should be. As examples if I
download music from the Internet without paying any musician a
required royalty fee and put the music on a blank CD where I paid the
levy, this appears to be legal. On the other hand if I purchase a CD
and make a personal copy onto a hard disk or portable MP3 player,
this appears to be an infringement.

As a final point this
regime would be less offensive if the money was collected and
dispensed by a government agency that was fully accountable to all
citizens who are stakeholders in such a policy, not just a private
group of intermediaries. The private copying regime currently works
against the "no taxation without representation" principle.

Recommendation: The
private copying section of the act should be revisited with a view
towards removing it from the act. There is a need to return back to
first principles and determine what problems this regime was intended
to solve and look for solutions that do not create more problems in
the process.

Author participation in
Copyright and related policy events

This is a summary of
events that have happened from July 2001 to date that are related to
this submission I am making to the ongoing copyright reform process.
While most of the events relate specifically to copyright reform,
there is also a strong tie between copyright and other Free/Libre and
Open Source Software policy areas such as patent reform. My hope is
that by listing these events that this will entice Heritage Committee
members to be interested in further discussions on these topics.

Date

Description

July/August,
2001

Received notice
about Copyright Reform process, and created the
Canada-DMCA-opponents forum to discuss it54

I send in a reply58
to the Canadian Motion Pictures Distributors Association (CMPDA)
submission

October 29, 2001

Guest speaker at J.S. Woodswoorth Secondary
School to talk about Open Source Software and copyright reform.

February 22, 2002

Speaker at a
professional development day59
for local high-school teachers.

March 19, 2002

This
was my first meeting with people from the Copyright Policy
Branch60
of Heritage Canada. This meeting was a simple introduction of
some of the ideas I bring to the table61
I had other follow-up meetings including one meeting where I did
a live demonstration of Mandrake Linux62
and the OpenOffice.org63
office productivity suite.

Article published in
the Ottawa citizen titled 'The Anti-Copyright Crusader'65
which provided a good summary of some of the events in digital
copyright reform.

April 11, 2002

I attended the
consultation meeting hosted by the departments in Ottawa. I met
many more people from the departments for the first time,
including Claude Gagné66
from ICT branch.

April 29, 2002

Meeting with ICT related persons across
Industry Canada (Business and Regulatory Analysis, ICT, IPPD,
SchoolNet Program) organized by Claude Gagné. I was a
guest there to talk about FLOSS and copyright reform.

Presented at the
Open Source Solutions Showcase68
hosted by PWGSC. Following this showcase each meeting some of the
organizers would get together to discuss next steps in promoting
Open Source within the Canadian government. Out of these
discussions the GOSLING (Getting Open Source Logic INto
Governments) group69
was formed. I had already met Joseph Potvin (Architecture &
Standards Directorate, GTIS, PWGSC) a few times previous and help
organize this event.

June 28, 2002

Birds of a Feather
(BOF) session at the Ottawa Linux Symposium on Open Source &
Copyright Reform70.

August 10, 2002

Submission to CRTC
call for comments on a proposed policy framework for the
distribution of digital television services71.
I felt that including discussions relating to anti-circumvention
in a submission to the CRTC was necessary.

September 06, 2002

ITBusiness.ca published an article on GOSLING:
Linux group hatches plans for the public sector72

October 2, 2002

Co-presented to the Ottawa-Canada Linux Users
Group with Joseph Potvin73.
Joseph Potvin gave a talk entitled: Economics of the Open Source
Business Model. My presentation was titled: From Raymond to
Stallman: Open Source equality or Free Software public policy?

October 10, 2002

Ottawa Citizen published an article titled 'A
piece of the action'74
discussing GOSLING.

October 15, 2002

Part of a round table panel discussion on
'Open Source vs Free Software'75
at the Platform for Community Networks forum in Montreal. Many
government representatives were present including Claude Gagné
from ICT branch.

October 29, 2002

Rabble Rumble76
debate with Susan Crean on copyright reform. It was broadcast
live on October 29 from Ryerson University, this debate was
co-sponsored by the CAW-Sam Gindin Chair in Social Justice and
Democracy and the Ryerson School of Journalism. It was the first
in a series of Gindin Debates.

Susan and I had
already met before we were invited to debate. One thing that was
noticed as part of this debate is that we had more ideas that we
had in common than we differed.

November 21, 2002

Meting at Consumer
Affairs branch to discuss FLOSS.

December 11, 2002

Computing Canada published an article titled
'The pros and cons of open source computing'77
that included references to GOSLING and the BSA/CAAST 'software
manufacturing' piracy study flaws.

December 18, 2002

My open letter to the Canadian Coalition for
Fair Digital Access (CCFDA)78
was published in a few ITBusiness.ca magazines.

February 07, 2003

Article I authored on the private copying levy
titled 'Content industries on slippery slope with demand for
blank media levy' published in Canadian New Media79.

February 21, 2003

First meeting with my group of Algonquin
College students. I signed up to be a "customer" for
5th-term projects for Computer Studies students80.
In this project the students will be developing a tool to convert
Corel Quattro Pro spreadsheet files to the OASIS open office XML81
standard used by OpenOffice.org Calc82.
My involvement with this project is specifically to promote FLOSS
methodologies within the educational system.

February 27, 2003

Taped debate on
copyright reform on The Docket83
between David Basskin, Allison Outhit and myself.

March 6, 2003

Guest speaker in a
University of Toronto graduate course on Knowledge Media Design84
talking about FLOSS and copyright reform.

April 02, 2003

Article quoting my position on 'software
manufacturing' statistics being invalid was published in
ITBusiness.ca85:
Piracy stats flawed: open source proponent

April 4th, 2003

I participated in
the Minister's Forum on Copyright86
as a member of a creator community.

April 14, 2003

At the last moment I was substituted in to
talk at NRC's Government on the Net 03 conference87.
I was on a panel discussion88
alongside Joseph Potvin (GOSLING, PWGSC) and Eben Moglen
(Columbia Law School, legal council for the Free Software
Foundation)

April 30, 2003

Scheduled to present
at Real World Linux89
in the government track, but due to SARS I did not attend. My
slides90
for this event have been used for other less formal
presentations.

April 23, 2003

Introductory meeting
for the Advisory Committee for Computer Systems Technician &
Enterprise Network Specialist Programs at Algonquin College. I am
sitting on this advisory committee to help Algonquin include
FLOSS methodologies in their programs.

May 8, 2003

I set up and attended a meeting between Reg
Alcock91
(MP), Brian Behlendorf (co-founder of the Apache Software
Foundation92)
and Joseph Potvin (Public sector co-founder of GOSLING)

May 9, 2003

There was a number of events relating to Open
Source in Government including an event hosted by PWGSC in Place
du Portage III, and the 1-year anniversary of GOSLING93.

May 22-23, 2003

I attended the
public portion of the 2003 Annual General Meeting of the
Creators' Rights Alliance94
on an invitation from co-president Susan Crean.

Guest speaker at a Linuxfest96
on the topic of "Why FLOSS" which focused on the public
policy and social aspects of FLOSS methodologies.

July 24, 2003

Hosted a Birds of a
Feather (BOF) at Ottawa Linux Symposium on Getting Open Source
Logic INto Governments (GOSLING)97

September 8, 2003

I was invited to a
special meeting of the Creators' Rights Alliance98
to talk about Free/Libre Software.

October 3, 2003

Attended the first
day of the Comparative IP & Cyberlaw Symposium99
at Ottawa University.

October 7-8, 2003

The GOSLING
Community had a booth at GTEC100
this year in the 'Open Source Lab'. Joseph Potvin helped organize
the lab.

October 8, 2003

I was a guest
speaker at a School of Management class at Ottawa University at
the request of John Nash101.
The class was on e-Government with my presentation focusing on
the public policy aspects of Free/Libre Software given Lawrence
Lessig's suggestion that 'Code is Law'.

1Information
on the Standing Committee on Canadian Heritage can be found on their
parliamentary committee website

3Full
contact information for the author can be found at his work website
of http://www.flora.ca. He is a
self-employed businessperson who focuses on Free/Libre and Open
Source Software (FLOSS, see note 17) from a technical, business and
public policy perspective.

4I
considered using the Free Documentation License
http://www.fsf.org/copyleft/fdl.html
(accessed October 27, 2003), but in this case I wanted people to use
any ideas presented here in their own writing.

8This
is the term used in a suggestion of a meeting about this model with
members of the World Intellectual Property Organization (WIPO).
This meeting is discussed in more detail below.

9Central
to my analysis of copyright is a recognition that there are not 2
but 3 constituencies in copyright: creators (authors, software
developers), intermediaries (publishers and other non-creator
copyright holders) and citizens (audiences, users).

10While
I believe that these consequences are unintended by policy makers, I
also believe that these consequences are intended by the
intermediaries who seek to retain all rights in copyright by
amassing rights that were previously held by creators or citizens.

14Legal
protection for Technological Protection Measures (TPM) is a term
used to discuss what is referred to under article 11 of the WIPO
Copyright Treaty (adopted in Geneva on December 20,
1996)http://www.wipo.int/clea/docs/en/wo/wo033en.htm#P88_11974This
concept will be discussed in more detail later.

15Hearings
before the subcommittee on courts, civil liberties, and the
administration of justice of the House of Representatives,
ninety-seventh congress, second session, onH.R. 4783, H.R. 4794
H.R. 4808, H.R. 5250, H.R. 5488, and H.R. 5705HOME RECORDING OF
COPYRIGHTED WORKSAPRIL 12, 13, 14, JUNE 24, AUGUST 11, SEPTEMBER
22 AND 23, 1982http://cryptome.org/hrcw-hear.htm
(accessed on September 14, 2003)

18The
Canadian Alliance Against Software Theft (CAAST)
http://www.caast.ca/ is a lobby
group promoting a royalty-based business model known as "software
manufacturing". Their claim is that "CAAST is committed to
reducing software piracy in Canada through education, public policy
and enforcement."

24While
a discussion of these alternative business models are outside the
scope of this submission, I am a consultant for businesses and
policy makers that wish to learn more. I also have a "Get Legal
- become Free!" offer of free consultations and support to move
away from illegally copied software to legal free/libre software.
http://www.flora.ca/rates.shtml#getlegal

Whereas the function of a computer program is to communicate
and work together with other components of a computer system and
with users and, for this purpose, a logical and, where appropriate,
physical interconnection and interaction is required to permit all
elements of software and hardware to work with other software and
hardware and with users in all the ways in which they are intended
to function;

Whereas the parts of the program which provide for such
interconnection and interaction between elements of software and
hardware are generally known as 'interfaces`;

Whereas this functional interconnection and interaction is
generally known as 'interoperability`; whereas such interoperability
can be defined as the ability to exchange information and mutually
to use the information which has been exchanged;

Whereas, for the avoidance of doubt, it has to be made clear
that only the expression of a computer program is protected and that
ideas and principles which underlie any element of a program,
including those which underlie its interfaces, are not protected by
copyright under this Directive;

26More
details on the issues in patent law, along with my recommendations,
can be found in my patent report that was commissioned by ICT branch
of Industry Canada. http://www.flora.ca/patent2003/
(accessed October 31, 2003)

There has been a variety of
media articles on this theme such as from Ben Stocking, "Vietnam
embracing open-source products" (Oct 30, 2003 in The Murcury
News) http://www.siliconvalley.com/mld/siliconvalley/7139304.htm
(accessed November 5, 2003). This article discusses how that
nations solution to software piracy is to eliminate Microsoft.

32The
Linux kernel is the core program that interfaces between the
hardware and the rest of an operating system part of a Linux
Distribution such as RedHat Linux, Suse Linux, and many more. It is
important to remember that the Linux kernel is one program among
many that make up what people commonly think of as Linux. More
information about the kernel can be found at http://www.linuxhq.com/
(accessed October 15, 2003) which includes the full source code and
revision history for this program.

33As
an example the CREDITS file in Linux version 2.5.25 lists 443 unique
contributors, with that file representing a small subset of the
people who have contributed to this project.

34The
full GNU General Public License can be read at
http://www.fsf.org/licenses/gpl.html
(accessed October 15, 2003). It should be noted that for the Linux
kernel the developers have only collectively agreed to version 2 of
this license and not any future versions.

37It
has been reported that SCO has gone so far as to make the laughable
claims the GNU GPL license is unconstitutional. SCO Claims Linux GPL
Is Unconstitutional, by By Jay Lyman
http://www.ecommercetimes.com/perl/story/31975.html
(accessed October 31, 2003). SCO is demonstrating a lack of
understanding of copyright and contract law in trying to suggest
that if a group of creators (the peer production participants in
Linux) use a license agreement authored by a third party (in this
case the GNU GPL, authored by the GNU Project) that it is this third
party and not the creators who must enforce their copyright.

45The
problem with the term "proprietary software" to reference
software created using "software manufacturing"
methodologies is that all software not in the public domain,
including FLOSS software, is proprietary under the most basic legal
definition of the word. The use of the term "non-proprietary
software" to talk about FLOSS leads to confusion around the
fact that most FLOSS software has more copyright holders (more
proprietors), not less. FLOSS methodologies do promotes open vendor
neutral and non-proprietary computing interfaces.

47The
Linux Professional Institute (LPI) http://www.lpi.org/
(accessed October 25, 2003) serves the community of Linux and open
source software users, vendors and developers, in the interest of
increasing and supporting professional use of such software
throughout world. As part of their work they offer
vendor/distribution neutral Linux skills certification. LPI was
formally incorporated as a Canadian non-profit in October 25, 1999,
and is headquartered near Toronto.

68While
this event was advertised within the government, the only externally
accessible information site is at http://www.flora.ca/osss2002/
(accessed October 12, 2003). A few of the slide presentations
presented are linked via that site including my own.

69GOSLING
is an informal group of people acting as private citizens trying to
promote open source in the government. The participants come from
all sectors of the economy including public, private, volunteer and
education. We now host a website for people to find out more about
us at http://www.goslingcommunity.org/